Sunday, February 8, 2015

Back in 2011, a feminist blogger named Sasha made an interesting observation about our legal system: murder victims' consent is treated differently from rape victims' consent. In murder cases, our starting assumption is that the alleged victim did not consent to the act (until proven otherwise), whereas in cases of sexual encounters, our starting assumption is that the alleged victim did consent to the act (until proven otherwise). Why is that? Why are our starting assumptions (or null hypotheses) exact opposites in cases of rape and murder? This sounds like an absolutely disgusting double-standard. Sasha describes this state of affairs by saying that women are presumed to exist in a perpetual state of consent.

Now, do I think there is a double-standard at play here? No, I think there is one, single, underlying standard which explains the apparent difference between how we treat consent in murder cases, and how we treat consent in rape cases.

Before I explain what I think this underlying standard is, I’d like to see if I can get you, the reader, to figure it out. I’m going to offer you a hypothetical situation, and then I’m going to ask you to explain what is wrong with this state of affairs. If you come to a different conclusion than I do, let me know.

Imagine that I propose a law, and this law dictates that in cases of murder, where it has already been established that the accused person did indeed kill the victim, the accused person is still innocent until it is proven that the victim did not consent to being killed (assuming, of course, that this would vindicate the accused person). In other words, unless the prosecution can prove that the dead person clearly stated that they didn’t want to die, the default assumption of the court is that the dead person agreed to being killed, and the murderer would go free.

Now, obviously this is ridiculous, but why is it ridiculous? Why don’t we assume that murder victims agreed to be murdered until proven otherwise?

Here is my answer; I think this law would be ridiculous because the vast majority of murders are non-consensual, and understandably so: do you look forward to death? Therefore, it doesn't make sense to assume, as a starting point, that any one particular murder victim did consent, and to require the prosecution to prove otherwise. It would be ridiculous to think this way given what we know of murder and of peoples’ strong aversion to dying.

However, what if people didn't have a strong aversion to dying? What if being murdered was an enjoyable experience? How would that affect this thought experiment?

Let's return to our thought experiment, but now let's imagine that all humans are in constant pain, and murdering another person was seen as a great act of altruism. In this world, that the vast majority of murders are consensual, and understandably so. I think that in this world, the law I proposed would be reasonable, since the vast majority of murders are consensual, so it makes sense for our null hypothesis, our starting assumption, to be that any one instance of murder is consensual unless proven otherwise.

Similarly, in the real world, I think that because the vast majority of sexual encounters are consensual, it makes sense to assume that any one particular sexual encounter is consensual unless proven otherwise, thus placing the burden of proving otherwise on the accuser.

In other words, and this is my key point: if you are claiming that this particular incident (of rape, murder, etc.) is different from other events like it, then it is your job to prove that this incident is, in fact, different. This is how the burden of proof works in all crimes, and this, I think, is why people are assumed to be in a perpetual state of consent when it comes to sex, and a perpetual state of non-consent when it comes to being killed: people usually enjoy sex, and people usually don't enjoy dying. It would be disastrous to confuse these two very different acts, as illustrated by the first version of our thought experiment, as well as by the image below.

This is a false analogy because "kidnapping" implies non-consent, whereas "having sex" does not.A proper analogy would be between having sex and carpooling.

To reiterate: the reason why people are assumed to be in a “perpetual state of consent” with regard to sex, but not with regard to murder, is because normally, having sex is consensual, and being murdered is not, so it's reasonable to assume that any one particular murder victim did not consent, and that any one particular sexual participant did consent. If, however, you are claiming that this particular incident was different (e.g. I did not consent to sex, or the man did consent to being killed), then it’s on you to prove it.

People are also presumed to be in a state of “perpetual consent” when they carpool with someone they know (I mean, “kidnapped”), or when they are hugged by a family member (I mean, “assaulted”). This is because these things are normal, everyday events that people normally consent to. If you want to claim that your friend kidnapped you, or that your family member assaulted you, then it’s your job to prove that this incident was different from the other times you've carpooled with that friend or been hugged by that family member.

This, I think, explains the apparent double-standard between court cases of rape and murder, and demonstrates that, in fact, the same standard is used in both.